Recent requests seeking exemptions from trucking hours-of-service rules have raised questions about how federal regulators view such requests and what kind of response they are required to provide.
Ronnie Brown III, who drives for Waterloo, Iowa-based Gray Transportation, applied in June to the Federal Motor Carrier Safety Administration for an exemption from both HOS and rules requiring drivers to have ELDs installed in their cab.
Brown contended in his application — a two-page email to FMCSA — that he should be exempt because limitations imposed by the rules “do not always [coincide] with my natural sleep patterns,” and that he views HOS as a “mechanism by the government to control my movements which I view as a violation of my constitutional right to free movement and my right as a human being to make my own choices in life as to my work habits.”
Four weeks later, Flat Top Transport, a Holland, Michigan-based trucking company with 10 drivers, applied to FMCSA for a four-month HOS exemption to allow for “emergency delivery of dry bulk food-grade products” to locations around the country.
FMCSA notice and comment: Size doesn’t matter?
Less than three months after receiving the applications, FMCSA published notices in the Federal Register and initiated a 30-day comment period, despite the nature of the requests and the limited scope to which they would apply: Brown’s exemption would apply only to him, Flat Top Transport’s only to its handful of drivers.
The president of Brown’s company, Darrin Gray, acknowledged he did not know how an HOS exemption would work for just one of his employees if Brown were granted the exemption.
Contacted in August by FreightWaves after FMCSA announced the public notice and comment period for his application, Flat Top Transport owner Jason Mayrand told FreightWaves he was surprised to hear that his application was being put out for comment. “I’ve never done anything like this before,” he said.
Some comments to Brown’s application — it has so far received over 1,200 — were just as surprised. “It is inconceivable to me that the FMCSA would even consider granting such a request,” according to one. “True, we all have our individual abilities and inabilities. But when it comes to rulemaking, it is not just about one individual.”
FMCSA, DOT notice and comment requirements
FMCSA’s handling of these recent exemption requests — that is, issuing a notice and public 30-day airing — could also be considered a stricter interpretation of what is actually required by statute.
FMCSA states in its exemption notices that it “must publish a notice of each exemption request in the Federal Register,” citing 49 CFR 381.315 (a). However, that citation states only that the agency “will [rather than ‘must’] review your application and prepare … a Federal Register notice requesting public comment on your application for an exemption.” That could be viewed as potentially leaving open the interpretation that FMCSA can use discretion over whether to publish a comment period if, for example, the applicant does not follow certain application requirements.
In response to a request for further clarification, FMCSA cited another statute, 49 U.S.C. 31315(b). But that statute also leaves out “must.” It states that the DOT secretary “shall publish … a notice explaining the request that has been filed and shall give the public an opportunity … to comment on the request.”
The difference between “shall” and “must” may be significant as it relates to interpreting federal law and regulations, according to the Federal Aviation Administration, an agency within DOT. The FAA points to the website plainlanguage.gov, which states that the legal community “is moving to a strong preference for ‘must’ as the clearest way to express a requirement or obligation.”
Asked if it has changed how it determines whether to publish a notice and comment, FMCSA responded only that it “is not considering changes to the rules (i.e., 49 CFR Part 381) concerning the handling of exemption applications.”
FMCSA advancing the conversation
Whether or not FMCSA has altered its approach to notice and comment periods, one attorney told FreightWaves that ensuring such requests are published for public inspection is important regardless of their content.
“My experience in the past was that FMCSA would sometimes respond to exemption requests explaining why it had been denied and not released for public comment, like in the case where it didn’t have statutory authority to grant a request,” P. Sean Garney, co-director at Scopelitis Transportation Consulting, recently told FreightWaves.
“But putting these requests out in the public square, where it can be discussed and debated, generates important conversations in the industry, and while many of these exemptions may never be granted, they may seed important conversations that could lead to good public policy at the end of the day.”
Or as one commenter on Ronnie Brown’s application put it: “I applaud Mr. Brown for his application and request. I appreciate FMCSA offering this open comment period. The only way to improve the industry is through things like this.”